BILL NUMBER: AB 1856	CHAPTERED  09/30/00

	CHAPTER   1047
	FILED WITH SECRETARY OF STATE   SEPTEMBER 30, 2000
	APPROVED BY GOVERNOR   SEPTEMBER 30, 2000
	PASSED THE SENATE   AUGUST 22, 2000
	PASSED THE ASSEMBLY   JUNE 1, 2000
	AMENDED IN ASSEMBLY   APRIL 4, 2000

INTRODUCED BY   Assembly Member Kuehl

                        FEBRUARY 7, 2000

   An act to amend Section 12940 of the Government Code, relating to
harassment.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1856, Kuehl.  Harassment:  liability of employees.
   Under existing provisions of the California Fair Employment and
Housing Act, employers, labor organizations, apprenticeship and
employment training programs, other persons, their agents, and
supervisors, are civilly liable for harassment of an employee, an
applicant for employment, or a person providing services under a
contract, as defined, on the basis of race, religious creed, color,
national origin, ancestry, physical disability, mental disability,
medical condition, martial status, sex, age, or sexual orientation.
   This bill would expressly provide that employees of any entity
covered by these provisions are personally liable for prohibited
harassment perpetrated by the employee.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 12940 of the Government Code is amended to
read:
   12940.  It shall be an unlawful employment practice, unless based
upon a bona fide occupational qualification, or, except where based
upon applicable security regulations established by the United States
or the State of California:
   (a) For an employer, because of the race, religious creed, color,
national origin, ancestry, physical disability, mental disability,
medical condition, marital status, sex, or sexual orientation of any
person, to refuse to hire or employ the person or to refuse to select
the person for a training program leading to employment, or to bar
or to discharge the person from employment or from a training program
leading to employment, or to discriminate against the person in
compensation or in terms, conditions, or privileges of employment.
   (1) This part does not prohibit an employer from refusing to hire
or discharging an employee with a physical or mental disability, or
subject an employer to any legal liability resulting from the refusal
to employ or the discharge of an employee with a physical or mental
disability, where the employee, because of his or her physical or
mental disability, is unable to perform his or her essential duties
even with reasonable accommodations, or cannot perform those duties
in a manner that would not endanger his or her health or safety or
the health or safety of others even with reasonable accommodations.
   (2) This part does not prohibit an employer from refusing to hire
or discharging an employee who, because of the employee's medical
condition, is unable to perform his or her essential duties even with
reasonable accommodations, or cannot perform those duties in a
manner that would not endanger the employee's health or safety or the
health or safety of others even with reasonable accommodations.
Nothing in this part shall subject an employer to any legal liability
resulting from the refusal to employ or the discharge of an employee
who, because of the employee's medical condition, is unable to
perform his or her essential duties, or cannot perform those duties
in a manner that would not endanger the employee's health or safety
or the health or safety of others even with reasonable
accommodations.
   (3) Nothing in this part relating to discrimination on account of
marital status shall do either of the following:
   (A) Affect the right of an employer to reasonably regulate, for
reasons of supervision, safety, security, or morale, the working of
spouses in the same department, division, or facility, consistent
with the rules and regulations adopted by the commission.
   (B) Prohibit bona fide health plans from providing additional or
greater benefits to employees with dependents than to those employees
without or with fewer dependents.
   (4) Nothing in this part relating to discrimination on account of
sex shall affect the right of an employer to use veteran status as a
factor in employee selection or to give special consideration to
Vietnam-era veterans.
   (b) For a labor organization, because of the race, religious
creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, sex, or sexual
orientation of any person, to exclude, expel or restrict from its
membership the person, or to provide only second-class or segregated
membership or to discriminate against any person because of the race,
religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital status,
sex, or sexual orientation of the person in the election of officers
of the labor organization or in the selection of the labor
organization's staff or to discriminate in any way against any of its
members or against any employer or against any person employed by an
employer.
   (c) For any person to discriminate against any person in the
selection or training of that person in any apprenticeship training
program or any other training program leading to employment because
of the race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital
status, sex, or sexual orientation of the person discriminated
against.
   (d) For any employer or employment agency, unless specifically
acting in accordance with federal equal employment opportunity
guidelines and regulations approved by the commission, to print or
circulate or cause to be printed or circulated any publication, or to
make any non-job-related inquiry of an employee or applicant, either
verbal or through use of an application form, that expresses,
directly or indirectly, any limitation, specification, or
discrimination as to race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition,
marital status, sex, or sexual orientation, or any intent to make any
such limitation, specification or discrimination.  Except as
provided in the Americans with Disabilities Act of 1990 (Public Law
101-336) and the regulations adopted pursuant thereto, nothing in
this subdivision shall prohibit any employer from making, in
connection with prospective employment, an inquiry as to, or a
request for information regarding, the physical fitness, medical
condition, physical condition, or medical history of applicants if
that inquiry or request for information is directly related and
pertinent to the position the applicant is applying for or directly
related to a determination of whether the applicant would endanger
his or her health or safety or the health or safety of others.
   (e) For any employer, labor organization, or employment agency to
harass, discharge, expel, or otherwise discriminate against any
person because the person has made a report pursuant to Section
11161.8 of the Penal Code that prohibits retaliation against hospital
employees who report suspected patient abuse by health facilities or
community care facilities.
   (f) For any employer, labor organization, employment agency, or
person to discharge, expel, or otherwise discriminate against any
person because the person has opposed any practices forbidden under
this part or because the person has filed a complaint, testified, or
assisted in any proceeding under this part.
   (g) For any person to aid, abet, incite, compel, or coerce the
doing of any of the acts forbidden under this part, or to attempt to
do so.
   (h) (1) For an employer, labor organization, employment agency,
apprenticeship training program or any training program leading to
employment, or any other person, because of race, religious creed,
color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, sex, age, or sexual
orientation, to harass an employee, an applicant, or a person
providing services pursuant to a contract.  Harassment of an
employee, an applicant, or a person providing services pursuant to a
contract by an employee other than an agent or supervisor shall be
unlawful if the entity, or its agents or supervisors, knows or should
have known of this conduct and fails to take immediate and
appropriate corrective action.  An entity shall take all reasonable
steps to prevent harassment from occurring.  Loss of tangible job
benefits shall not be necessary in order to establish harassment.
   (2) The provisions of this subdivision are declaratory of existing
law, except for the new duties imposed on employers with regard to
harassment.
   (3) An employee of an entity subject to this subdivision is
personally liable for any harassment prohibited by this section that
is perpetrated by the employee, regardless of whether the employer or
covered entity knows or should have known of the conduct and fails
to take immediate and appropriate corrective action.
   (4) (A) For purposes of this subdivision only, "employer" means
any person regularly employing one or more persons or regularly
receiving the services of one or more persons providing services
pursuant to a contract, or any person acting as an agent of an
employer, directly or indirectly, the state, or any political or
civil subdivision of the state, and cities.  The definition of
"employer" in subdivision (d) of Section 12926 applies to all
provisions of this section other than this subdivision.
   (B) Notwithstanding subparagraph (A), for purposes of this
subdivision, "employer" does not include a religious association or
corporation not organized for private profit.
   (C) For purposes of this subdivision, "harassment" because of sex
includes sexual harassment, gender harassment, and harassment based
on pregnancy, childbirth, or related medical conditions.
   (5) For purposes of this subdivision, "a person providing services
pursuant to a contract" means a person who meets all of the
following criteria:
   (A) The person has the right to control the performance of the
contract for services and discretion as to the manner of performance.

   (B) The person is customarily engaged in an independently
established business.
   (C) The person has control over the time and place the work is
performed, supplies the tools and instruments used in the work, and
performs work that requires a particular skill not ordinarily used in
the course of the employer's work.
   (i) For an employer, labor organization, employment agency,
apprenticeship training program, or any training program leading to
employment, to fail to take all reasonable steps necessary to prevent
discrimination and harassment from occurring.
   (j) For an employer or other entity covered by this part to refuse
to hire or employ a person or to refuse to select a person for a
training program leading to employment or to bar or to discharge a
person from employment or from a training program leading to
employment, or to discriminate against a person in compensation or in
terms, conditions, or privileges of employment because of a conflict
between the person's  religious belief or observance and any
employment requirement, unless the employer or other entity covered
by this part demonstrates that it has explored any available
reasonable alternative means of accommodating the religious belief or
observance, including the possibilities of excusing the person from
those duties that conflict with his or her religious belief or
observance or permitting those duties to be performed at another time
or by another person, but is unable to reasonably accommodate the
religious belief or observance without undue hardship on the conduct
of the business of the employer or other entity covered by this part.
  Religious belief or observance, as used in this section, includes,
but is not limited to, observance of a Sabbath or other religious
holy day or days, and reasonable time necessary for travel prior and
subsequent to a religious observance.
   (k) For an employer or other entity covered by this part to fail
to make reasonable accommodation for the known physical or mental
disability of an applicant or employee.  Nothing in this subdivision
or in paragraph (1) or (2) of subdivision (a) shall be construed to
require an accommodation that is demonstrated by the employer or
other covered entity to produce undue hardship to its operation.
   (l) For an employer or other entity covered by this part, to
subject, directly or indirectly, any employee, applicant, or other
person to a test for the presence of a genetic characteristic.
